Bankruptcy Filing Time Limitations

You can only file bankruptcy as a Chapter 7 and get a discharge every eight years after the last Chapter 7. You count the time from the date the first case was filed until the date the second case is filed. There are bankruptcy filing limitations that require you to wait years after one discharge until your next discharge. You can file a Chapter 13 the day after your Chapter 7 case closes to stop a foreclosure. But, you will not get a discharge in the second Chapter 13 case.

Filing a Chapter 13 after Chapter 7 benefits you from the stay, allowing you to manage student loans, a foreclosure, or income tax debt over three or five years. But the stay is only a temporary order. You can stop a foreclosure with Chapter 13 even if you can’t get discharged.  The stay will stop the foreclosure and student loan collections for up to five years.  The stay can control IRS and Student loan garnishments, sometimes paying little or nothing to the debt for a period of years.

Bankruptcy Filing Time Limitations

If you need to strip a second mortgage, you have to get the discharge in Chapter 13 which can strip a mortgage with no equity. So you might not want to file a Chapter 7 and then follow it up with a 13. When you file a Chapter 7 or Chapter 13 bankruptcy, a stay goes into effect.  The stay is a temporary court order. Your goal usually is to get the permanent court order called a discharge at the end of the case. You can only obtain one discharge every few years. But you can file a Chapter 13 whether you get a discharge or not. A Chapter 13 stay allows you to manage debts that survived a Chapter 7 with the stay. Since the stay in Chapter 13 lasts 3-5 years, you have time to pay off a Student loan, foreclosure, or priority tax debt.

Debts incurred for a criminal fine, domestic support obligation, willful or malicious injury, or educational loans.

Priority and nondischargeable debts may not be allowed a discharge.  But a willful and malicious injury or drunk driving accident personal injury claim can be managed or discharged by the failure to object to the plan.  To discharge what is normally a nondischargeable debt, you must give full notice to the creditor.

The failure to object tends to run from when the effective date the objecting or moving party gained knowledge or notice. You are the requesting party when you file the plan, and an allowed claim will be held to the terms of the plan and order of confirmation. Espinosa held that even if a debt, such as a student loan, is not dischargeable, the debt may be modified or discharged if the court approves the plan and allows a discharge to be executed. Bankruptcy law will require notice to be given to a party.  But bankruptcy law does not reward creditors who ignores the order for relief and other provision.

Bankruptcy Filing Time Limitations Filing a Chapter 20 objecting to an allowed claim filed

Often, the unsecured debts will prevent getting a discharge granted in Chapter 13.  An allowed unsecured claim in Chapter 13 must be paid a percentage in the plan or disallowed. However, if Chapter 7 is filed first, an unsecured claim can be objected to and disallowed in Chapter 13.   A willful and malicious conversion may be fraudulent but planning is not such fraud.   Unsecured debts provided for in Chapter 7 are eliminated and become an objectionable disallowed claim filed in Chapter 13.

Claims have to be paid by the plan or disallowed.  The discharge granted by a Chapter 13 can be greater than the Chapter 7.  By filing Chapter 7 first, it sets up all of the debts at the choice of the debtor to be allowed in the plan or disallowed as a prior discharged debt

Chapter 7 filing problems

Sometimes, refiling is so important that a debtor may reopen an old case and request that the discharge be set aside so a new case can be filed. You can voluntarily dismiss a Chapter 13, but dismissing a Chapter 7 requires prior trustee approval.

You usually will not get prior approval if the debtor’s failure to list an asset was involved. The Trustee will administer the estate to earn a fee from liquidating non-exempt assets. The court determines whether forgetting an asset is a fraud. However, if a discharge is granted in Chapter 7, then the eight-year waiting period will still be required.

Table of bankruptcy time limitations.

These are the bankruptcy filing time limitations. We calculate these periods from the date you filed the first bankruptcy until you file the following bankruptcy.

To convert a Chapter 13 to a Chapter 7 and get a discharge, you must have qualified for a Chapter 7 when filing the Chapter 13. If you filed Chapter 13 because you were not eligible for Chapter 7, you would not be able to convert. You have to dismiss a Chapter 13 instead and file a new case as Chapter 7. Because the time runs from “date filed” to “date filed,” you must dismiss and refile these cases.

These are the amounts of time you have to wait from one discharge until you can get the next discharge.

If you are thinking about filing bankruptcy, don’t delay because timing is crucial. I am here to help you. So, contact my office right away to start the conversation. Nick C. Thompson, Bankruptcy Lawyer: 502-625-0905.